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District Court 8 February 2024

R v RJ (No.5)

[2024] NSWDC 26

Sexual offences
CRIMINAL LAW SENTENCING

Citation: R v RJ (No.5) [2024] NSWDC 26
Court: District Court of New South Wales
Date: 8 February 2024
Judge: Abadee DCJ

Background

Following a jury trial at Gosford lasting nearly two weeks, the offender was convicted on eight counts of sexual offences committed against his granddaughter across six separate incidents. The offending spanned a period during which the victim was aged between 8 and 12 years. The offender was the victim's paternal grandfather.

The counts included one charge of sexual intercourse with a child under 10 years in circumstances of aggravation (carrying a maximum penalty of life imprisonment), four counts of indecent assault of a child under 16 years, and three counts of aggravated sexual intercourse with a child aged between 10 and 14 years. Many incidents occurred at the offender's home at Umina Beach while the victim was in his care.

The offender's credibility challenges at trial were substantial. He called his wife, and several of the victim's cousins gave evidence on his behalf, all challenging the victim's account. The jury nonetheless returned guilty verdicts on all primary counts, which Abadee DCJ characterised as an emphatic acceptance of the victim's credibility and reliability.

  • What factual findings were open to the sentencing judge consistently with the jury's verdicts, and what standard of proof applied to contested sentencing facts?
  • What weight should be given to objective and subjective sentencing factors, including the nature and circumstances of each offence?
  • Whether the offender's bail conditions over approximately two years were sufficiently onerous to warrant backdating the sentence or treating the period as equivalent to time spent in custody.
  • Whether special circumstances existed justifying a variation of the standard statutory ratio between the non-parole period and the total sentence.

Decision

Abadee DCJ applied the sentencing principles recently restated in R v Lauren Cranston [2023] NSWSC 454, including that the prosecution must prove any aggravating facts beyond reasonable doubt, that the offender bears the onus of proving mitigating facts on the balance of probabilities, and that the sentencer is constrained only to findings consistent with the jury's verdict by necessary implication.

His Honour made detailed factual findings across each count, accepting the victim's evidence as to the circumstances of each incident. The findings included the young age of the victim at the time of each offence, the exploitation of the offender's position of authority as a grandparent, and that the offending occurred in the offender's home, often while other family members were absent or nearby.

On the question of bail conditions, Abadee DCJ declined to treat the conditions imposed over roughly two years (including daily reporting requirements and a curfew limiting movement without accompaniment) as equivalent to house arrest or quasi-custody. His Honour accepted that the conditions imposed not insignificant constraints on the offender's liberty over a lengthy period, but found they were not of a quality that could be assimilated to actual custody.

His Honour found that special circumstances existed, warranting a variation of the ordinary statutory ratio between the non-parole period and the total sentence, given the offender's age, ill-health, and status as a first-time offender.

Orders Made

  • The offender was convicted of counts 1, 3, 4, 5, 6, 7, 9, and 11 on the indictment.
  • An aggregate sentence of 16 years' imprisonment was imposed, commencing 20 October 2022 and expiring 19 October 2038.
  • A non-parole period of 9 years and 7 months was set, expiring 19 May 2032, after which the offender is eligible for release on parole.

Key Takeaways

  • After a jury verdict, the sentencing court is constrained only to findings consistent with that verdict by necessary implication; within that constraint, the judge may make findings as they see fit, without being required to accept the view of the facts most favourable to the offender.
  • A sentencing judge's acceptance of the victim's evidence as credible and reliable can form the primary basis for factual findings at sentencing, particularly where the jury's verdicts constitute an emphatic rejection of the defence case.
  • Bail conditions involving reporting requirements and movement restrictions, even when imposed over a two-year period, do not automatically warrant treatment as equivalent to custody or quasi-custody for sentencing purposes; the qualitative character of the conditions, not merely their duration, is the relevant consideration.
  • Special circumstances justifying a departure from the standard non-parole period ratio may be established by reference to an offender's age, significant ill-health, and absence of any prior criminal record.
  • Under the Crimes Act 1900 (NSW), sexual intercourse with a child under 10 years in circumstances of aggravation carries a maximum penalty of life imprisonment and a standard non-parole period of 15 years.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61M(2), 66A(2), 66C(2), 80AF
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- Baker v R [2022] NSWCCA 195
- Bhatia v R [2023] NSWCCA 12
- Culbert v R [2021] NSWCCA 38
- Davidson v R [2022] NSWCCA 153
- DBW v R [2007] NSWCCA 236
- GL v R [2022] NSWCCA 202
- Muldrock v R (2011) 244 CLR 120
- R v Lau [2022] NSWCCA 131
- R v Lauren Cranston [2023] NSWSC 454
- RH v R [2019] NSWCCA 64